Tapara and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair (Migration)

Tapara and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair (Migration) [2020] AATA 321 (26 February 2020)
Division:GENERAL DIVISION
File Number(s): 2019/8033
Re:Mr Paul Tapara
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth

Date:26 February 2020
Place:Sydney

The decision under review is affirmed
......................................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185.
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
Senior Member B J Illingworth
26 February 2020
INTRODUCTION

This matter relates to an application for review filed by Mr Paul Tapara (“the Applicant”) on 6 December 2019. The decision the Applicant seeks to review is the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) dated 3 December 2019 not to revoke the mandatory cancellation of his Absorbed Person visa (“visa”).
At the hearing before the Tribunal, the Applicant appeared in person and was unrepresented. The Respondent was represented by Cameron O’Sullivan of Australian Government Solicitor.
BACKGROUND
The Applicant is a 58 year old citizen of New Zealand. He was born in January 1962 in Christchurch, New Zealand.
On 16 February 1979, the Applicant arrived in Australia at the age of 17 years.[1] He was granted an Absorbed Person visa on 1 September 1994.[2] The Applicant has permanently resided in Australia since his arrival in 1979 and has never returned to New Zealand.
[1] Exhibit A, G11, page 94.
[2] Ibid, G7, page 67.
On 3 July 1979, soon after his arrival in Australia, the Applicant appeared in the Carlton Magistrates Court and was sentenced for the offences of attempted theft from a motor vehicle and wilful damage to property for which he was placed on a bond and fined $75 respectively.
Thereafter, the Applicant was repeatedly before various courts and dealt with for a variety of criminal offences in New South Wales. He was last sentenced in the Hornsby Local Court on 23 January 2019, for a serious speeding offence and driving a motor vehicle during the disqualification period. The Applicant was fined $1,500 and was further disqualified from holding or obtaining a driver’s licence and imprisoned for nine months. I will refer to his offending in more detail later in the decision.
The Respondent, at paragraph [12] of his Statement of Facts Issues and Contentions, summarised the Applicant’s lengthy criminal history in the following terms:
12.The applicant’s criminal record… comprises approximately 60 convictions over a 40-year period commencing in the year of his arrival in Australia, and includes:
12.1.21 driving and vehicle related offences
12.2.27 drug and prohibited substance offences
12.3.4 offences for resisting / hindering / assaulting police
12.4.2 offences relating to having a knife in a public place, and
12.5.1 conviction for larceny as a servant.
On 20 February 2019, the Applicant’s visa was mandatorily cancelled by a Ministerial delegate under s 501(3A) of the Act on the grounds that he did not pass the character test as defined in s 501(7) of the Migration Act 1958 (“the Act”), because he has been sentenced to a term of imprisonment of at least 12 months and was serving a term of imprisonment on a full-time basis.[3]
[3] Ibid, page 67.
On 8 March 2019, the Applicant made representations seeking the revocation of the mandatory decision to cancel his visa.[4]
[4] Ibid, G13, page 118 – 137.
On 3 December 2019, the Minister’s delegate decided not to revoke the original decision.[5]
[5] Ibid, G2, page 5 – 6.
On 6 December 2019, the Applicant lodged an application for review of the delegate’s decision to the Tribunal.[6]
[6] Ibid, G1, pages 1 – 3.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Pursuant to 501(6)(a) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)…
Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of the Minister, may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the “character test”; or
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the Original Decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant concedes that he does not pass the character test as he has been sentenced to a term of imprisonment of at least 12 months. I am satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the original decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
In this case, the relevant direction is Ministerial Direction No. 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No. 65.
MINISTERIAL DIRECTION NO. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker must take into account the considerations in Part C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia; and
c)Expectations of the Australian community.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are (but not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims; and
e)Extent of impediments if removed.
The Tribunal will now summarise the evidence and then address each of these considerations in turn.
The Applicant’s Evidence
The Applicant said his life in New Zealand was not a happy one. His father was verbally abusive and physically violent, particularly toward the Applicant, as the eldest child. His mother and siblings were also victims of his father’s violence. He said that his father ‘used to bash us’. His father was not affected by alcohol or drugs when he was violent, which made his violence difficult to understand for the Applicant.
The Applicant had travelled to Australia as a young teenager on two occasions to see his grandparents and aunts and uncles who lived in Australia. In 1979 at the age of 17 years, the Applicant travelled to Australia alone and thereafter he remained in Australia.
The Applicant’s parents and siblings subsequently moved to Australia. His family members are all still New Zealand citizens.
The Applicant’s parents separated in the early 1980s. His father passed away about three or four years ago. His mother does not enjoy good health suffering from emphysema.
The Applicant described his family as being close. Whilst in prison, his mother came to see him quite a few times. She travelled by public transport and also with the assistance of friends. She required walking aids and despite the Applicant telling her not to visit, she still came to the prison. However, since being in Villawood his mother’s health has deteriorated, her emphysema has worsened and she has not been well enough to visit him. He has not seen his siblings. His sister cannot travel to see him because she is unwell having suffered from mental health issues from the 1990s.
Before being imprisoned, the Applicant lived with friends, namely Ms BH and her son Mr BH. Mr BH suffered a brain injury arising out of a motor vehicle accident when aged 21 years. He is now approximately 40 years of age. The reason The Applicant stayed in the home was to help assist Ms BH, who is now aged approximately 80 years, with the care of her son. In return he received a reduction in his rent. Ms BH has written a letter of support of the Applicant and confirming the support he has provided for her son. [7]
[7] Exhibit C, Attachment J.
Since being imprisoned the Applicant believes that Ms BH and her daughter are caring for Mr BH. Should he be released back into the community Applicant believes he will return to reside at that premises.
The Applicant has a brother RT, born in 1963. RT has two children namely, a daughter aged 21 years and a son, J, aged 15 years. The Applicant said he does not have much to do with his nephew. RT and his partner separated a number of years ago and J lives in Queensland with his mother. The Applicant only sees J on rare occasions, such as his father’s funeral. The Applicant does not provide any care or support for J. It is not suggested he will do so in the future.
The Applicant never married but has a daughter born in 1980. His daughter and her mother lived in South Australia; his daughter’s mother passed away some 10 years ago. He said he did not have a very close bond with his daughter and only corresponded with her through letters after her mother’s death but did not see her in person.
The Applicant commenced a relationship in 1996. His partner suffered from serious mental health issues. She had two daughters from a prior relationship, but because of her health, both daughters lived with their maternal grandmother. Nonetheless, he and his late partner saw both daughters regularly and he developed a close relationship with them.
The Applicant’s partner committed suicide in 2005 which was a very traumatic event for the Applicant. The Applicant thereafter maintained regular contact with both of her daughters and would see them about three times a year because they moved around, including living in Queensland. He has not seen the younger daughter for a few years but he keeps in contact with the older daughter, LH, who has provided a letter of support to the Tribunal.[8]
[8] Exhibit C, Attachment M.
The Applicant has a number of health issues including type 2 diabetes, hyperthyroidism secondary to Graves’ disease and polycythaemia. He previously suffered from post-traumatic stress disorder, which was diagnosed in 2010 after the suicide death of his late partner in 2005. In 2010, the Applicant was briefly on medication for his post-traumatic stress disorder. He said his mental health was now satisfactory and confirmed that he has told staff and Villawood that ‘he does not have any Mental Health Issues’.[9] He said in evidence that he is fine and not depressed.
[9] Exhibit B, R6, page 81.
The Applicant said that when he was suffering from his mental health issues he started re-offending and making mistakes. The courts referred him to drug and alcohol counsellors and psychology counsellors at various times, which he always attended. He was put on courses, such as EQUIPS foundation course which he completed in about 2017.[10]
[10] Exhibit C, Attachment A.
The Applicant said he had also been undertaking a course in Business III Certificate which was directed to writing material, processing material, customer affairs, and health and safety. He was one month off finishing that course when he was taken into custody. If released back into the community he would like to complete that certificate and then go on to complete the Business IV Certificate. The Applicant explained that his work provider recommended he undertake those courses. Those courses gave him something to do and also the potential to improve his employment prospects.
Employment history
The Applicant has generally been employed when not in custody. When he first arrived in Australia and was living in Melbourne. He worked on the assembly line at Toyota for about three to four years. He moved to Sydney and obtained employment as a storeman for approximately 12 months, but whilst employed in that position he committed the offence of larceny as a servant and was sentenced to imprisonment. Upon his release from custody he was employed at the Department of Main Roads, or its equivalent, building roads and subsequently working on the Sydney Harbour Bridge in the control centre as a tow truck attendant. That work included assessing traffic flows during periods of peak hour on Sydney Harbour Bridge, Sydney Harbour Tunnel, and other bridges. He worked in that role from about 1984 to 1996. During those years of employment he was not in custody. He ceased that employment following the breakdown of a relationship. He said he ‘went off the rails a bit – right off the rails’ and started drifting and hanging around with the wrong people at the “Cross” and became involved with drugs for which he was sentenced to imprisonment.
Following his release from prison, the Applicant was employed as a truck driver for a company involved in the television and movie industry; but he had to stop that work because his partner subsequently committed suicide. She was at the relevant time having serious mental health issues. After about a year, and whilst on home detention, he obtained employment for a company involved in building temporary stages, such as at sporting events. He remained in that work from about 2005 to 2010, during which time he was not imprisoned. He ceased that employment due to a work-related injury. Since 2010, the Applicant has not worked and has been in trouble committing offences and serving periods of imprisonment.
Offender History
On 3 July 1979, shortly after his arrival in Australia, the Applicant was dealt with by the Carlton Magistrates Court for wilful damage of property and attempted theft from a motor vehicle. He was fined and placed on a bond. The Applicant could not remember much about those offences. He was drunk at the time.

On 2 June 1983, the Applicant was next before the courts for drink driving and was disqualified from holding a licence for four months.
On 22 July 1983, the Applicant appeared before the Sydney District Court charged with larceny as a servant. The Tribunal received a copy of the sentencing remarks. [11] Between October and November 1982, the Applicant stole eight video cassette recorders and eight video cassettes from his employer. The Applicant was employed as a storeman in the dispatch section of his employer company from 1981. He was responsible for sending stock to Brisbane. A package arrived in Brisbane stuffed with Sydney newspapers instead of the merchandise. Following a stock take the company identified a shortage of video cassettes and recorders. The Applicant stopped attending work from 25 November 1982, namely about the time of the stock take. The Learned Sentencing Judge heard evidence from the Applicant. The Applicant admitted to selling the items he stole at the pub to help pay his debts. His Honour said in reference to the Applicant ‘was indeed totally unimpressive in endeavouring to satisfy me of any real alleged indebtedness’.[12] His Honour then said the offence ‘was a deliberately planned type of theft without any real basis’[13] and that the offending only stopped when the company became aware of the theft whereupon the Applicant absented himself.
[11] Exhibit A, G4, pages 50 – 53.
[12] Ibid, page 51.
[13] Ibid, page 53.
The Learned Sentencing Judge sentenced the Applicant to three years imprisonment with a non-parole period to expire on 22 May 1984.
The Applicant said in evidence before the Tribunal that the offence resulted from peer pressure from friends and that he needed to get parts to fix his car. When referred to the sentencing remarks, the Applicant did not take issue with them.
From 1983 to 1997, the Applicant was not before the courts. However, between 10 January 1997 and 4 June 1997, the Applicant was sentenced for numerous offences, including possession prohibited drug, assault, hinder and resist police, supply prohibited drug (four offences), possession prohibited drug (cocaine) and possession of a prohibited substance.
At the time of this offending, the Applicant had been working with the Department of Roads. He said he had a ‘marital breakup, then I ended up with the wrong people’ and started using drugs. He said he was aged about 35 years at the time and the offending, and that it was uncharacteristic to start using drugs at the late age of 35 years.
In 1998 and 1999, the Applicant was before the Local Court and Parole Board for breach of recognizance and cancellation of periodic detention.
On 27 March 2001, the Applicant came before the Sydney District Court for sentence in relation to the ongoing supply of prohibited drug (cocaine), the particular supplies being 11 November, 24 November and 7 December 1999. The sentencing remarks were before the Tribunal.[14] The Learned Sentencing Judge was asked to take into account three charges of supplying cocaine in August and October, one charge of offering to supply cocaine in November and one charge of possessing cannabis in December.
[14] Ibid, pages 43 – 49.
The Learned Sentencing Judge said that the Applicant was one of a series of members of a cocaine distributing operation in which he played a role midway between the runners and the head of the organisation. The Applicant was depended upon to carry messages to and from runners to the head of the organisation and assist in its operation. At the time of sentence, the Applicant was 39 years of age. The Applicant was sentenced to imprisonment for four years and six months with a non-parole period of three years and three months.
Following his release from custody at the end of the non-parole period, the Applicant obtained employment with a construction company. In 2004, the Applicant appeared before the Local Court on 12 May 2004 and was sentenced for the use of an uninsured motor vehicle (two offences) and for the use of an unregistered motor vehicle (two offences). He was fined.
On 1 December 2004, the Applicant was sentenced for common assault for which he was fined.
On 9 December 2004, the Applicant was before the Local Court and sentenced for driving whilst license suspended (two charges). He was sentenced on each charge to nine months imprisonment on home detention to be served concurrently with a non-parole period of five months with conditions. He was to be released subject to supervision of probation services and to attend counselling, educational development or drug and alcohol rehabilitation.
Whilst on home detention he obtained employment with a stage rental company and he did not appear before the courts again until 2010. The Applicant said he started to offend because he was on drugs, namely marijuana and ‘maybe a little bit of Ice’. He used marijuana to help him sleep. He was still suffering anxiety following the suicide of his partner in 2005.
In 2010 and 2011, the Applicant was sentenced by the Local Court for offences of possess prohibited drug (four charges) and custody of a knife in a public place and was placed on a bond. The drug was marijuana.
The Applicant was next before the Local Court in 2014. On 26 November 2014, he was before the Local Court and dealt with for 19 offences. Those offences included:
(a)Possess prohibited drug (six charges);
(b)Driving while suspended (six charges);
(c)Use unregistered and use uninsured motor vehicle;
(d)Driving under the influence of alcohol;
(e)Custody of knife in a public place;
(f)Vehicle displaying unauthorised number plate (two charges); and
(g)Larceny.
The sentencing remarks of Magistrate Ryan were before the Tribunal.[15] The Learned Magistrate noted the various offences dated back to September 2012. He said that the Applicant had a long-standing problem with drugs and substance abuse. He noted that there was material from psychiatrists confirming he had problems with depression and anxiety, as well as post-traumatic stress disorder. The Applicant had a need for long-term counselling support and rehabilitation. It is noteworthy that the matters came before the Learned Magistrate a year earlier when it was decided that it would be appropriate for the matter to await sentencing while the Applicant ‘put into effect your long-expressed wish to undertake rehabilitation’.[16] Hence, in May the Applicant entered a detox program at St Vincent’s Hospital and in June entered the Salvation Army’s Bridge Program at the Dooralong Transformation Centre where he had remained ever since until sentencing. A letter from the Salvation Army indicated that the Applicant had made good progress, that there were some months remaining on the program and that he had to date stuck with it.
[15] Ibid, pages 39 – 42.
[16] Ibid, page 39.
The Learned Magistrate observed that two offences of driving while suspended occurred on the same day. The Learned Magistrate sentenced the Applicant to a combination of fines and bonds. In relation to the last two offences of driving while suspended, the Applicant received concurrent sentences of imprisonment of eight and 12 months suspended, upon him entering into a bond and to maintain his engagement with the Salvation Army. In respect of other bonds received, a similar condition that he maintained his involvement with the Salvation Army Bridge Program was ordered to continue.
The Applicant confirmed that the Learned Magistrate gave him the opportunity to get himself “sorted” and back on track. Because he was participating in various rehabilitation programs he was not working. The Applicant explained that he was out of rehabilitation and with about one month to go in respect of his suspended sentence when he ‘got caught with a bit of pot again, which breached the 12-month suspended sentence with the new charge’. It also breached the other bonds that he had entered into in 2014.
On 4 January 2016, the Applicant appeared before the Hornsby Local Court charged with driving a motor vehicle whilst disqualified (two charges), to which he was sentenced to nine months imprisonment on each count to be served concurrently with a non-parole period of six months. He was also dealt with for possessing prohibited drug for which he was placed on a bond. When asked by the Tribunal why he committed those offences the Applicant said he ‘shouldn’t have been driving, should – I just – yes. I just got caught driving’. When asked if there is a reason why he drove he responded ‘[n]o. Not – well, not really. I can’t really give a reason. I should have known better, simple as that. Way lot better.’
When pressed by the Tribunal about why he offended he said:
Bad choices. Yes, just bad choices. Like, I knew, deep down, that it was wrong anyway, but someone asked me, was she wanted to be picked up from a hotel, because she having drama or some stuff. I told her I wasn’t licenced, but I still drove. So, I still drove, you know, but it’s no excuse, but I did it on a Saturday, and the next day, it was Sunday, I got in the car again and I just put my hand up on Monday to court and said, look, plead guilty.
On 16 November 2016, the Applicant appeared before the Local Court charged with possess prohibited drug (two charges) and was given concurrent sentences of one month imprisonment. Those offences gave rise to numerous matters being called up to be dealt with for the breaches of bonds imposed by the Learned Magistrate on 26 November 2014. He was sentenced to concurrent periods of imprisonment ranging from one to 12 months, the latter sentence being for one of a number of offences of driving while suspended. He received a non-parole period of two months.
On 23 January 2019, the Applicant appeared before the Hornsby Local Court and was dealt with for offences of drive a motor vehicle while disqualified for which he received a sentence of imprisonment of nine months, with a non-parole period of six months; and speeding estimated to be excess of 45 kilometres per hour above the speed limit. The Tribunal had before it the sentencing remarks of Magistrate Williams.[17]
[17] Ibid, pages 33 – 38.
Counsel for the Applicant submitted that the Applicant had no excuse for his offending. He did not need to drive that day but got into his car and drove from his home to a service station to get something to eat turned around and drove home. He was seen by a police car and instead of slowing down, he sped up. Counsel made similar submissions consistently made before other courts in relation to the Applicant’s personal circumstances. It was admitted that the Applicant was still taking drugs.
The Learned Magistrate noted that the Applicant had been disqualified from driving until 2049 and yet the Applicant still had a car. In an exchange with Counsel for the Applicant, it was suggested that the Applicant believed that because of the change in legislation he may have been able to get his licence back.
The Learned Magistrate said that the Applicant drove at 105 kilometres per hour in a 50 kilometre zone and that he should never be allowed to drive again. His Honour described the Applicant as an absolute danger to the community. His Honour said:[18]
The accused when the police got behind him took off at a speed accelerating harshly, they followed it down Blytheswood Road which is a 50 kilometre zone, it travelled down Blytheswood maximum speed of 106 kilometres per hour, this time police estimated his speed between 105 and 110 kilometres per hour, that is in a 50 zone. He passed two side streets on the left and one street on the right making right-hand turn in the driveway of 37 Blytheswood which happens to be his address. Police believe and quite rightly he was trying to evade the police, got out of the car and said he was disqualified and said I don't normally drive like that.
[18] Ibid, page 37.
His Honour went on to say that on the night of the offending the Applicant was a major danger to anybody else on the road. He said:
[T]his is a person who just snubs his nose at the Court at every single opportunity, he snubs his nose at the community at every opportunity. He puts people in danger just because he wants to go to the shops, that is the level of interest in public safety.
When asked by the Tribunal why he offended that night, the Applicant said ‘that night, I drove the car and I knew I shouldn’t have. It was only up the shops, like’. When asked why he put his foot down to speed he said:
Well, they reckon I did, yes. I didn’t believe I was going that fast anyway, but I didn’t actually see them and they, of course, they just pulled - the driveway off the main road is about a good 80 metres, it’s like a 40 while off the road and I just looked down the driveway and you could see the blue lights coming up. So, yes.
When pressed by the Tribunal, the Applicant agreed he put his “foot down” and that he had no excuse to do so.
The Applicant said in evidence that he had been declared to be a habitual offender which resulted in his licence disqualification until 2049. He believed that because the habitual offender provisions have been abolished, he may be permitted to get his licence back and could re-apply after completing required courses. This application for re-instatement of his licence, if refused, could be the subject of the fresh application every two years. The Applicant believed he had a good chance of re-instatement of his driver’s licence.
In cross-examination, the Applicant agreed that he knew that he was driving while suspended or disqualified and that it was his intention to return to driving but it was just a matter of doing so legally. The Applicant said that he had only been before the court for driving whilst disqualified on three occasions. He understood driving whilst suspended to be different to driving whilst disqualified, namely that his licence was suspended by the Road Traffic Authority rather than disqualified by court order.
Further in cross-examination, the Applicant acknowledged that he received warnings when he was close to having lost the threshold of 13 demerit points.
Prior Warnings
The Tribunal asked the Applicant about two prior occasions in which he had been made aware of the risk of deportation. On the second occasion he received a formal warning.
The Tribunal asked the Applicant about an interview with the Department of Immigration and Ethnic Affairs on 21 September 1983.[19] The Applicant was informed that because of his conviction at the Sydney District Court on 22 July 1983 for larceny by servant he had rendered himself liable for deportation. The Applicant was taken to that record of interview and its contents. He said he vaguely remembered the interview. He said he did not receive any formal notification from the Department of Immigration and Ethnic Affairs, just that that no further action was going to be taken and he was not going to be deported. The Applicant admitted that after 1983, he knew his offending may render him liable for deportation but he did not think about it.
[19] Ibid, G9, pages 88 -90
The Tribunal referred the Applicant to a notice of cancellation of visa dated 27 June 2016[20] and the subsequent notice of decision to revoke the visa cancellation under s501CA(4) dated 20 September 2016.[21] which contains the following warning:
Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.
[20] Ibid, G8, pages 83 – 87.
[21] Ibid, pages 81 – 82.
The Applicant said upon receipt of the notice of cancellation, he filled out paperwork and gave details of his history and the reason why he did not want to get deported.
In evidence, the Applicant said that the two prior warnings ‘did play on my mind, the last offence’. When asked again why he offended knowing about the prior warnings he said:
I didn’t take them - well, I - I don’t know why I - why I offended. It did play in the back of my mind a little bit, you know, but obviously not a great deal because I still did it, you know?
The Applicant said he was more aware of the warning recently and now he is fully aware of it. He said he did not think about things a lot.
Other matters
The Applicant was taken by the Tribunal to the Breach of Parole Report dated 17 August 2017. [22] That report confirmed the Applicant completed the EQUIPS Foundation Program and that he was then engaged in drug relapse counselling. The report refers to records that the Applicant had a history of non-compliance with reporting obligations and that when he failed to report for interview on 28 April 2017 he could not be contacted. He attended late for a scheduled appointment on 23 May 2017. When he next attended he returned a positive test for amphetamine and methamphetamine. In a subsequent interview on 13 July 2017, having denied using drugs again, he tested positive for amphetamine and methamphetamine. He again tested positive on 26 August 2017, having again denied taking illicit drugs.
[22] Exhibit B, R3, pages 64 – 65.
The Applicant admitted that he was taking drugs and at the relevant time he was struggling. He said he was a bit depressed at the time and a little bit down.
Primary Consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
a)The nature and the seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal will address each of the considerations in paragraphs 13.1(2)(a) and 13.1(2)(b) of the Direction.
The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that… violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)…
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …

The Applicant has an appalling antecedent criminal history. He started committing offences shortly after his arrival in Australia. There were periods of time when he was not before the courts. However he continued to offend in circumstances that demonstrated his disregard for the laws of Australia and those charged with the responsibility of maintaining those laws namely police. He has repeatedly demonstrated his contempt for orders of the court. His offender history includes offences of violence, including violence against police.
He is a recidivist drug offender whose offending includes supplying cocaine. He has admitted to using marijuana and methamphetamine. In the Breach of Parole Report dated 17 August 2017, [23] it is of concern that the author reports that the Applicant had a history of non-compliance with his reporting obligations and that despite his denial of drug use he, on more than one occasion, returned positive test results for amphetamine and methamphetamine.
[23] Ibid.
The Applicant also has an appalling record of driving whilst disqualified from holding or obtaining a driver’s licence or when suspended because of loss of demerit points. The Applicant was ordered to serve a period of imprisonment in early 2016 for driving whilst disqualified. He was sentenced in late 2016 to further concurrent sentences of imprisonment, the maximum being 12 months, for multiple offences driving whilst suspended, which were called up for sentence following breach of bonds. Yet he was still not deterred from offending evidenced by his appearance before the Local Court on 23 January 2019 for driving whilst disqualified from holding or obtaining a driver’s licence.
His latest offending, for which he was sentenced on 23 January 2019, was a particularly bad example of this type of offending and demonstrated the Applicant’s contempt for the court order that disqualified him from holding or obtaining a driver’s licence. The offending also demonstrated his disregard for police when he drove at high speed to avoid detection. Driving at speeds of up to 110 kilometres per hour in a 50 kilometre zone in suburban New South Wales also demonstrated a lack of consideration for those others that may be using the road and placed members of the public potentially at very serious risk of injury or even death.
The Applicant had, by his offending in 1983, been spoken to by immigration authorities having rendered himself liable for deportation as a result of committing the offence of larceny by servant. Although this was not a formal warning, he was well aware that if he continued to offend he might expose himself to the risk of deportation. That did not deter him, and indeed, it was after that interview that the Applicant received a substantial period of imprisonment on 27 March 2001, namely four years and six months with a non-parole period of two years and three months, for his involvement in a drug organisation supplying cocaine.
By letter dated 27 June 2016,[24] the Applicant received notice of mandatory visa cancellation under s 501(3A) of the Act on the basis that he had a substantial criminal record within the meaning of the Act accordingly he did not pass the character test. The sentence relied upon in that notice, was the ongoing supply of cocaine for which he was sentenced to imprisonment to four years and six months with a non-parole period of two years three months, imposed by the District Court on 27 March 2001; and that he was then serving a sentence of imprisonment of nine months for driving whilst disqualified for which he was sentenced on 4 January 2016. That visa cancellation was revoked and the Applicant received a notice of revocation dated 20 September 2016[25] in which he received the formal warning referred to above.
[24] Exhibit A, G8, pages 83 – 87.
[25] Ibid, pages 81 – 82.
Nonetheless, in November 2016 the Applicant was dealt with for two offences of possess prohibited drug, and numerous matters that were called up to be dealt with because he breached court imposed bonds to be of good behaviour. In the case of one of those breach bonds he was ordered to serve a sentence of imprisonment of 12 months commencing 16 November 2016. This still did not deter the Applicant from offending, and again he appeared for sentence before the Local Court for driving whilst disqualified and excessive speed on 21 January 2019 for which he received a further sentence of imprisonment of nine months. Those matters were the basis of the Applicant’s visa cancellation, which is now before the Tribunal.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. It relevantly states:
(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In the Breach of Parole Report dated 17 August 2017, [26] it was reported that the Applicant completed the EQUIPS Foundation Program in April of that year and was engaged in drug relapse counselling with Hornsby Drug and Alcohol Service. He had, at the date of the report, engaged in three counselling appointments. However, what is alarming is the Applicant’s history of non-compliance and when tested on 26 May 2017 and again on 13 July 2017 he returned positive test results for amphetamine and methamphetamine. He was subsequently directed to engage in drug detoxification followed by drug rehabilitation treatment with a recommendation that he be allowed time to enter drug rehabilitation treatment and if he failed to comply with these conditions then revocation of his parole would be sought.
[26] Exhibit B, R3, pages 64 – 65.
On 23 January 2019, when appearing for the offence of driving a motor vehicle during disqualification and excessive speed a Sentencing Assessment Report dated 23 January 2019 was before the court. This report was also before the Tribunal.[27] The author reported the Applicant acknowledged the need to address long-standing drug issues, but that he was not under the influence of substance at the time of his arrest and claimed to be free of methamphetamine. However, there were no urine samples to verify this. The author also noted the Applicant completed the EQUIPS Foundation Program and earn drug detoxification treatment in 2017. The author reported that the Applicant remained a medium risk of re-offending.
[27] Ibid, R5, pages 77 – 80.
Conclusion: Primary Consideration A
The Applicant was a credible witness who did not seek to minimise his culpability for his offending. The Tribunal accepts his evidence. Nonetheless, the Applicant has a long history of offending and, despite numerous endeavours by the courts to assist him to deal with his drug and personal problems, he has continued to repeatedly offend, particularly in the nature of drug and driving offences.
He has repeatedly demonstrated his contempt for the laws of Australia. He has driven whilst disqualified or suspended on multiple occasions, including on the same and on consecutive days. He has breached court imposed bonds which have required him to be re-sentenced. He has breached parole, albeit he was not subject to revocation of parole in 2017 following a recommendation that he be given further assistance to address his drug rehabilitation.
Having been extended much leniency, it is still apparent from the Sentencing Assessment Report that the Applicant continued to take drugs having acknowledged to the author of the report that he had not been under the influence of methamphetamine for four months.
Given the Applicant’s antecedent history which dates from 1979 to 2019 the Tribunal has no confidence that he will not re-offend in a similar way, as he has over the majority of his life, whilst living in Australia.
Any person who engages in illicit drug use presents a risk to the Australian community not only as it contributes to sustaining the illicit drug trade throughout the country but also fuels the commission of offences including acts of violence.
The cumulative effect of the Applicant’s offending is serious. The Applicant has demonstrated contempt of court orders, in particular, court orders disqualifying him from holding or obtaining a driver’s licence. He has ignored the fact that he was suspended from driving. He has breached bonds and parole, and when given the opportunity by a court to engage in drug rehabilitation, he has continued to offend. The Applicant has not been deterred from re-offending despite the sentences that have been imposed by various courts upon him. Nor has he been deterred from re-offending when interviewed by an officer of the Department of Immigration and Ethnic Affairs in 1983, or when issued a formal warning, given after the revocation of his mandatory visa cancellation in 2016.
The Applicants offending was serious and he represents an unacceptable risk of re-offending. Accordingly, Primary Consideration A weighs heavily in favour of the Respondent and non-revocation of the visa cancellation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to and relevantly provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has only referred to one minor child to whom this Primary Consideration may apply namely his nephew, J. However, the Applicant has almost no contact with his nephew having last seen him on the occasion of his father’s funeral, approximately three or four years ago. There is no evidence of other correspondence or communication between the Applicant and J.
The Applicant’s nephew lives with his mother in Queensland. It is not submitted by the Applicant that he has in the past or will in the future play a parenting role in relation to that child and nor is there any suggestion that the Applicant’s removal from Australia will have any effect upon J.
Conclusion: Primary Consideration B
Given the absence of any evidence that the Applicant’s removal will have an impact upon his nephew J, Primary Consideration B is given neutral weight.
Primary Consideration C: Expectations of the Australian Community
Paragraph 13.3 of the Direction sets out the third of the Primary Considerations the Tribunal should have regard to and relevantly provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Further, paragraph 6.3(5) and (7) of the Direction provides:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)…
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The matters relevant to this Primary Consideration are outlined in the evidence of the Applicant which I have referred above; I will not repeat that evidence.
The Tribunals approach to considering this Primary Consideration was addressed in the decision FYBR v Minister for Home Affairs.[28] Clause 11.3 expressed a deemed community expectation that all persons who have committed a serious criminal offence giving rise to character concerns and have their visa application refused. Hence, it is the expectation of the Australian community that the Applicant obey Australian laws and that expectation has not been met because, by his offending and being sentenced to imprisonment, he does not pass a character test pursuant to s 501(6)(a) of the Act. It is not for the Tribunal to make its own assessment of community expectations. The nature of the character test is such that the deemed expectation will arise in most cases as it does here.
[28] [2019] FCAFC 185 (“FYBR”).
However, as Charlesworth J said in FYBR at[76]:
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations”... The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.
The weight to be given to this primary consideration, having regard to the principles referred to, in particular, paragraphs 6.3(5) and 6.3(7), are to be determined in the operation of the discretion of the Tribunal. Albeit, the Applicant did not pass the character test pursuant to s 105(6)(a) of the Act, which must weigh against the revocation of his visa cancellation, it remains for the Tribunal to determine what weight is to be given to this Primary Consideration.
Conclusion: Primary Consideration C
The Applicant came to Australia aged 17 years. He said, and the Tribunal accepts, that he had a difficult childhood particularly as a result of verbal abuse and physical violence by his father. Nonetheless, the Applicant committed his first offence in 1979, the year he arrived in Australia. In 1983, he committed the offence of larceny by servant and received his first prison sentence. Thereafter, the Applicant has a lengthy history of recidivist offending including, but not limited to, drug offences and driving whilst disqualified or suspended from holding a licence.
The Applicant has served a number of periods of imprisonment. He has received the benefit of bonds and has been given the opportunity to undertake various programs and certificates, directed particularly to his drug rehabilitation. Nonetheless, he has continued to offend.
Having been interviewed in 1983 by the Department of Immigration and Ethnic Affairs, the Applicant was well aware that further offending may result in his deportation. In 2016, after his mandatory visa cancellation was revoked, the Applicant was again given the opportunity to remain in Australia. That notice of revocation contained a clear written warning to which I referred in paragraph [76] above.
Despite the leniency of the courts, the numerous bonds and opportunities given to the Applicant to address his drug abuse, and the consideration shown to him by the Respondent in 1983 and again in 2016, he has continued to re-offend.
The comments of Magistrate Williams on 23 January 2019 which I have referred to in paragraph [67] above are apposite. In those sentencing remarks, His Honour described the Applicant as ‘an absolute danger to the community’[29] and then referred to the Applicant’s antecedent history as ‘one [of] the most appalling records I think I have ever seen’.[30]
[29] Exhibit A, G4, page 36.
[30] Ibid, page 37.
The Applicant has generally been employed when not in prison and until he suffered his work-related injury in 2010. However, when considering the tolerance the Australian community might afford the Applicant, this must be balanced against the fact that he started to offend soon after he arrived in Australia and has consistently offended thereafter. He has been a burden on the Australian community caused by his recidivist offending and numerous appearances before courts, engagement with rehabilitative and support services and periods of imprisonment. Given his extraordinary offending history, the tolerance to be extended now to this Applicant is low.
There remains an unacceptable risk that the Applicant will re-offend should he return to the community. There remains a serious character concern about the Applicant and his dedication to ensure that he does not re-offend. He has, by his conduct, now lost the privilege of holding a visa and remaining in Australia. This is reinforced by the fact that this is the third occasion that the relevant Department has either considered or dealt with the Applicant’s visa cancellation.
Accordingly, Primary Consideration C weighs heavily in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation.
The Other Considerations

In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14(1) of the Direction, include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
The Tribunal will address these elements, where relevant. Only Other Considerations (b) and (e) are relevant to the Applicant.
Other Consideration (b): Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that;
i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).
The Applicant’s family all reside in Australia. Family members have provided letters to the Tribunal, including from his elderly mother who suffers from emphysema and has mobility issues. She corroborates the Applicant’s evidence that he was the victim of abuse by his father. She says that he has lost his way a few times but not for long and that she will be very disappointed if the Applicant were to be returned to New Zealand. She confirms that the Applicant has no immediate family in New Zealand. The Applicant said in evidence that he has no ties to New Zealand and insofar as he may have relatives there, he has had nothing to do with them.
The Applicant provided a letter from Ms BH detailing the assistance the Applicant has provided to the care support of her son, who suffers disability issues following the motor vehicle accident which I have already referred to. Mrs BH said that since the Applicant has been away she and her husband have realised how much help he has been to her and to her son and how much the Applicant needs their support when he is unwell. This mutual support would not be available should he return to New Zealand.
The Applicant also provided a letter from his late partner’s daughter, Ms LH. She describes the Applicant as a father figure who cared for her late mother and sister. She writes, amongst other things that, ‘he follows the laws and sticks to himself mainly’, which having regard to the evidence before the Tribunal I reject. Nonetheless, I accept that should the Applicant be removed from Australia this will cause Ms LH distress. It is relevant that Ms LH does not reside in the same state as the Applicant and maintains electronic contact with him such as by phone, which she could continue to do should he return to New Zealand.
The Applicant has also filed numerous letters of support which I will not detail individually. In summary, those letters collectively confirm that the Applicant is contrite and regrets his offending. They describe him as a kind, caring and loving individual who has been a good friend and mentor to all and provided support including during difficult times. They continue to support the Applicant unreservedly. That is a consistent theme throughout all letters received.
Conclusion: Other Consideration (b)
The Tribunal accepts that the Applicant has no known ties to New Zealand and the whole of his family and all of his substantial body of friends all reside in Australia. These people provide the Applicant with friendship and support which will not be readily available to him should he be returned to New Zealand.
The Tribunal also accepts that he has a daughter and others who regard him as a father figure who will be distressed should he return to New Zealand.
However, the Applicant’s day-to-day communication with his family is often by telephone which will be available should he return to New Zealand. Nonetheless, the Tribunal accepts that the Applicant’s ties to family and friends strongly link him to Australia. This is particularly so, given he arrived as a teenager aged 17 years and has never returned to New Zealand.
Those factors however must be weighed against the fact that he started committing offences shortly after his arrival in Australia and albeit he has generally been employed when not in prison, he has made some positive contribution to the Australian community. When balancing those factors, and the balance of the evidence, Other Consideration (b) weighs significantly in favour of the Applicant and the revocation of his visa cancellation.
Other Consideration (e): Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant does have a number of medical complaints, including type 2 diabetes, hyperthyroidism, secondary to Graves’ Disease and polycythaemia. However, there is very little evidence before the Tribunal about the nature and extent of those medical conditions. The Tribunal has received discharge referral notes from The Royal North Shore Hospital[31] which appear to relate to a service date of 27 September 2017. This evidence corroborates that he was to be discharge from Drug and Alcohol Service at the Royal North Shore Hospital where he presented for ICE dependence and detoxification.
[31] Exhibit C, Attachments P – R.
The Applicant has also suffered from mental health issues resulting from the suicide death of his partner; however, having seen a medical specialist treatment in 2010 he does not currently have any mental health issue.
The Tribunal infers in the absence of any evidence to the contrary that the Applicant will be able to access the same or similar treatment for his medical conditions in New Zealand. Nonetheless, without his current level of support from family and friends and in the absence of any family ties in New Zealand the transition to living in New Zealand will be distressing and upsetting to him. There is no evidence to indicate what, if any, impact at all this might have on his mental health
Conclusion: Other Consideration (e)
Having had regard to the whole of the evidence, Other Consideration (e) weighs moderately in favour of the Applicant and the revocation of his visa cancellation.
There are no more Other Considerations that the Tribunal should have regard to on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:
(f)Primary Consideration A weighs heavily in favour of the Respondent;
(g)Primary Consideration B is given neutral weight;
(h)Primary Consideration C weighs heavily in favour of the Respondent; and
(i)Other considerations (b) and (e) respectively weigh significantly and moderately in favour of the Applicant.
(j)The combined weight Primary Consideration B and Other Considerations (b) and (e) is such that none of them, alone or combined, outweigh the significant weight that the Tribunal has attributed to the Primary Considerations A and C.
The Tribunal therefore finds that, taking into account all of the considerations in the Direction; they weigh in favour of the non-revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

……...................[Sgnd]..........................
Associate
Dated: 26 February 2020

Date of hearing: 6 February 2020

Applicant: Self-represented

Advocate for the Respondent: Mr Cameron O’Sullivan, Australian Government Solicitor

[2020] AATA 321

26 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date of hearing:	6 February 2020
Applicant:	Self-represented
Advocate for the Respondent:	Mr Cameron O’Sullivan, Australian Government Solicitor